How common-law relationships can leave you legally vulnerable

Common-law rights

What are the differences between common-law and marital relationships?

In Canada, there are two types of legal relationships: common-law relationships and marital relationships. Although both types of relationships involve a romantic partnership between two individuals, they differ significantly in terms of their legal rights and responsibilities.

Firstly, common-law relationships are defined as two individuals who have lived together for at least one year in a conjugal relationship. On the other hand, marital relationships refer to a legal union between two people who have gone through a formal marriage ceremony. In Canada, common-law relationships and marital relationships are treated differently under the law.

What does the difference in legal status between common-law and married couples affect?

One of the primary differences between common-law relationships and marital relationships is the legal status of the partnership. While married couples are recognized as spouses under the law, common-law couples do not have the same legal status. This means that common-law couples do not have the same rights and obligations as married couples, such as the right to inherit property from their partner without a will.

Another significant difference between common-law relationships and marital relationships is the way property is treated if the relationship ends. In a marital relationship, property acquired during the marriage is considered marital property and is subject to division if the marriage ends. In contrast, common-law couples do not have the same automatic property rights as married couples. If the common-law relationship ends, the division of property will depend on who owns the property and the nature of the couple’s contributions to it.

There are also differences in the legal requirements for ending a common-law relationship and a marital relationship. To end a marital relationship, couples must obtain a divorce, which involves a legal process that includes the division of property and the determination of child custody and support. In contrast, ending a common-law relationship does not require a formal legal process, although there may be legal issues that need to be resolved, such as the division of property or child custody.

Understanding these legal differences is essential for couples who want to ensure that their legal rights and responsibilities are protected in the event of a relationship breakdown or the passing of one partner.

Estate distribution and marital status: when do you have entitlements?

In Canada, there are significant legal differences between married couples and common law couples when it comes to the distribution of their estates upon their deaths. These differences can have a significant impact on the inheritance rights of surviving partners, as well as on their families.

Married couples are automatically entitled to certain rights and protections under the law. When one spouse dies, the surviving spouse is entitled to a share of the deceased spouse’s estate, even if the deceased spouse did not leave a will. This is known as the spousal right of election. The amount that the surviving spouse is entitled to varies depending on the province or territory in which the couple resides, but generally, it is a percentage of the estate.

In contrast, common law couples do not have the same automatic rights and protections. When one partner dies, the surviving partner is not entitled to any share of the deceased partner’s estate unless the deceased partner left a will that specifically names the surviving partner as a beneficiary. If there is no will, the estate will be distributed according to the laws of intestacy, which prioritize blood relatives over unmarried partners.

Another significant difference between the inheritance rights of married couples and common law couples relates to the treatment of property acquired during the relationship. In a marital relationship, property acquired during the marriage is generally considered to be marital property and is subject to division upon divorce or the death of one spouse. In contrast, property acquired during a common law relationship is generally considered to be the property of the partner who acquired it, unless it can be proven that both partners contributed to its acquisition.

This can create significant issues for common law couples who have been in long-term relationships and have jointly contributed to the acquisition of property. Without a clear legal framework for the division of property, surviving partners may find themselves in difficult legal battles with the families of deceased partners over the distribution of assets.

How to prepare your estate depending on your marital status

To ensure that their surviving partner is provided for after their death, common law couples must take proactive steps to plan their estates. This typically involves drafting a will that specifies how their assets should be distributed upon their death. Without a will, their estate may be subject to lengthy and costly legal battles between family members and surviving partners. To avoid these potential legal battles and ensure that their wishes are carried out after their death, both married and common law couples should seek the advice of a qualified estate planning lawyer.

The above is provided for informational purposes only and does not constitute legal advice — contact a lawyer to discuss your personal circumstances and learn your options.

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